All Commentary
Saturday, April 1, 1961

There Ought Not To Be A Law

A well-known author, journalist, and spokes­man for conservatism explains why….

One of the surest signs of a drift toward statism and collectivism is a fanatical urge to pass laws de­signed to reform and remold hu­man nature and to create a para­dise in this world. Sometimes Congress is the principal offender; sometimes it is the Supreme Court, which, in the opinion of such a high legal authority as Judge Learned Hand, has displayed a tendency to arrogate to itself the functions of “a third legislative chamber.” Judge Hand spells out his reaction to this trend in his stimulating little book, The Bill of Rights:

“For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I as­suredly do not. If they were incharge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”

There is historical background for this familiar emotional re­sponse to every real or alleged evil: “There ought to be a law.”

There has always been a cru­sading, reforming spirit in Amer­ica—the natural attribute of a young pioneering people. This has had its good sides and its bad sides. It has led to much improve­ment in social conditions, in hu­manization of everyday living re­lations through voluntary coop­erative efforts of individuals and groups. Alexis de Tocqueville and other visitors to America were im­pressed by this individual and group initiative, in contrast to the passive acceptance of state action more characteristic of Europe. There are dangers in the over­optimistic assumption that pass­ing a law is the best answer to all human weaknesses, frictions, and feelings—or prejudices, depend­ing on the point of view. This leads to an expansion of the power of the State beyond its proper functions of repressing crime and fraud and providing se­curity against the threat of ex­ternal attack. When government goes further and proposes to cen­sor and regulate all phases of hu­man conduct, it creates more prob­lems than it solves.

The “affirmative state,” which seeks to interfere and meddle and snoop on many issues that are not properly liable to legislative treat­ment, is considered by its advo­cates the latest model in moder­nity. Actually it represents a throw­back to the era of absolutist rule, when it was considered a function of government to prescribe every detail of individual conduct, to fix wages, to lay down rules as to what people of various social classes might wear.

In this connection there is an instructive historical contrast be­tween the experiences of the Brit­ish New England colonies and of adjacent Canada under the rule of France. The New England colon­ies were left pretty much alone, tosink or swim by their own efforts. Canada was almost smothered with well-meant directions and regula­tions from Paris, often drawn up by royal bureaucrats with little firsthand knowledge of Canadian conditions. New England flour­ished on its diet of self-help and self-reliance. Canada stagnated as a result of too much paternal su­pervision from abroad. This is not the least important of the reasons why France was finally ousted from its control of Canada, despite the administrative ability of Frontenac, the courage of Mont-calm, and the achievements of the French explorers and missionaries.

Too Many Laws: Too Many Crimes

It is always dangerous for leg­islators or judicial authorities to forget the distinction between clear and obvious and definable crimes—which can and should be penalized—and those human weaknesses, frailties, maladjust­ments that cannot be eliminated by laws, court rulings, policemen, and soldiers but are best ap­proached through appeals to the individual sense of right, self-respect, reason, fairness, justice, and morality.

The ultimate guaranty of the rule of law is the support of the overwhelming body of public opinion. There is such support for apprehending and punishing the murderer, the burglar, the thief, the embezzler. But, when eager-beaver would-be reformers push through legislative or judicial ac­tions adversely affecting large numbers of people who do not re­gard themselves and are not re­garded by their neighbors as criminals, enforcement trouble follows as certainly as night fol­lows day.

A good example of this principle occurred following the enactment of prohibition by amendment to the American Constitution in 1919. The evils of alcoholism are beyond dispute. It is a ravaging disease, a major cause of crime, poverty, and human unhappiness. But against the excesses of the chronic alcoholic must be set the feelings of the large number of people who use alcohol in moderation with no visible bad effect on their health or behavior.

Most of these people resented being deprived of what they con­sidered a harmless recreation and stimulant. There was such a mas­sive breakdown of respect for law, caused by wholesale violation and evasion, that prohibition was fi­nally discredited and repealed, leaving an unsavory legacy of racketeering gangs which had got their start peddling bootleg liquor.

More than a century ago, before the outbreak of the Civil War, as part of a number of measures designated to relax tension be­tween North and South, Congress enacted a very drastic Fugitive Slave Law designed to facilitate the apprehension and return of slaves who had escaped to the North. The validity of this law was upheld by the Supreme Court. But this fact did not prevent the wholesale nullification of the meas­ure in the Northern states, many of which resorted to “interposi­tion” by enacting state “personal liberty” laws forbidding courts to take cognizance of claims under the Fugitive Slave Law. The latter measure remained largely inop­erative and its chief effect was to aggravate further sectional ten­sion and hasten the outbreak of the Civil War.

Race Relations

More recently there have been repeated efforts, at the national and state levels, to introduce an element of legal sanction into the delicate area of race relations. Most important in this connection has been the ruling of the Su­preme Court making illegal the system of separate schools for white and Negro children which has been maintained for genera­tions in Southern states. Here was a change, affecting almost every family, which no Southern state legislature would have voted for.

It is hardly surprising that evasion and noncompliance have been widespread and that there have been regrettable cases of mob violence and disorder. And when one sees pictures of interracial strife and violence and reads of the ordeal to which Negro chil­dren are often subjected in boy­cotted or frigidly hostile white schools the questions must arise: Would it not have been wiser and more statesmanlike to let the mat­ter rest until public opinion in the South was prepared to accept the change constructively? Are such disturbances as have occurred in Little Rock and New Orleans and other places conducive either to good education for children of either race or to good race rela­tions?

Housing and Unemployment

The same objections apply to the use of legal sanctions in such fields as housing and employment. It is a safe prediction that genuine progress in eliminating race preju­dice will come in inverse propor­tion to the amount of bitterness stirred up by attempting to com­pel people to do something which, rightly or wrongly, they do not wish to do. Sixty-five years ago the great Neo educator and pub­licist, Booker T. Washington, was invited to address the Atlanta Ex­position and was subsequently ap­pointed to an educational jury. This was at a time when Negro progress in all fields, including so­cial recognition, was far behind what it is today. Dr. Washington‘s speech was acclaimed as a striking contribution to better race rela­tions. In his autobiography, Up from Slavery, he stresses the psy­chological value of the fact that the two invitations did not come to him as a result of outside pres­sure:

“Suppose that some months be­fore the opening of the Atlanta Exposition there had been a gen­eral demand from the press and public platform outside the South that a Negro be given a place on the opening program and that a Negro be placed upon the board of jurors of award. Would any such recognition of the race have taken place? I do not think so.”

A whole cumbersome body of law, much of it so detailed as to make equitable enforcement diffi­cult, has grown up on the subject of labor-management relations. Here again, there is surely a case for less, not more legislation, for the proper execution of existing laws, and for adherence to a few broad principles of justice and fair dealing: the right to quit and the right to work; the right to belong or not to belong to a trade union; free and honest votes in trade unions; an unrelenting war on racketeers who are equally ob­noxious to decent employers and decent workers; and reasonably assured redress for injuries to persons and property.

Unwise To Crusade for Laws Ahead of Public Opinion

The rule of law is one of the foundation pillars of civilized so­ciety. But this pillar should not be subjected to overstrain. Law may break down if it is enacted and enforced against the will of a majority or a strong minority of the people. The net to catch law­breakers should not be made so broad that large numbers of normally law-abiding individuals are caught in it. Experience proves that it is wiser to wait for the slower but surer process of a changing public opinion than to rush through crusading legislation which invites active and passive resistance. Legislation clearly aimed at one section of the coun­try is also undesirable.

Against the advocates of the “affirmative state,” who measure the value of every Congress by the amount of legislation it grinds out and regard no field as immune from state meddling and muddling, one may appeal to the authority of the first principles embodied in the American Constitution.

Read through the Constitution and see how many of its provisions are prohibitions, how often the word “not” is to be found:

“Congress shall make no law re­specting an establishment of reli­gion or prohibiting the free exer­cise thereof; or abridging the freedom of speech or of the press; or the right of the people peace­ably to assemble and to petition the Government for a redress of grievances.”

Only four lines, yet here is a priceless guaranty of freedom of religion and the press and the right of peaceable assembly. And here are a few more emphatic “Noes” to arbitrary power:

“The right of the people to be secure in their persons, houses, papers, and effects, against unrea­sonable searches and seizures, shall not be violated…. nor shall private property be taken for pub­lic use without just compensation…. Excessive bail shall not be re­quired, nor excessive fines im­posed, nor cruel and unusual pun­ishments inflicted…. The enum­eration in the Constitution of cer­tain rights shall not be construed to deny or disparage others re­tained by the people….The privi­lege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or in­vasion the public safety may re­quire it…. No bill of attainder or ex post facto law shall be passed…. No capitation or other direct tax shall be laid, unless in proportion to the census or enum­eration hereinbefore directed to be taken.”

Indeed the Constitution may be regarded as one loud “No” to all efforts of the State to interfere with the natural rights and liber­ties and private concerns of its free citizens. The Founding Fath­ers were among the best read men of their time and were familiar with the causes that had led to the downfall of free societies in the past. They knew that the tyranny from which the American colon­ists had freed themselves was only one of many which might infringe on or threaten them in their new independent state. To guard against this danger they set up a government of limited and divided powers and superimposed on this a long series of clear blunt pro­hibitions of all kinds of arbitrary action, binding on all branches of the government.

The clear brief statement affirm­ing freedom of religion and of the press has already been cited. What a contrast to the turgid, long­winded resolution on the subject of freedom of the press which is under consideration by the United Nations and which is so full of “ifs, buts, and whereases” that it is worse than no resolution at all! Indeed, the contrast between the UN view and the US view of free­dom of religion, speech, and press is impressively significant. It is the UN view, shaped, of course, by the presence of many states that are not free and of some that are out-and-out totalitarian, that these basic liberties are matters of con­venience, subject to government grant, limitation, or abrogation. The historic American view is that they are natural rights of men under God, which no govern­ment may lawfully withhold or deny.

The United States today suffers from too many laws—not from too few—from too many agencies, too many bureaucratic empires. As a consequence, one of the griev­ances stated against King George III in the Declaration of Inde­pendence applies only too well to the condition of the self-governing United States today:

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their sub­stance.”

It will be a happy day for Americans when the course of government is set toward the ob­jective of repealing harmful, use­less, and obsolete laws, of trusting more to the unaided good sense of the people, and of narrowing and closely defining those fields where legislative and/or judicial action represents the proper approach.

  • William Henry Chamberlin (1897-1969) was an American historian and journalist. He was the author of several books about the Cold War, Communism, and US foreign policy, including The Russian Revolution 1917-1921 (1935) which was written in Russia between 1922-34 when he was the Moscow correspondent of The Christian Science Monitor.